decided: October 9, 1987.
ROBERT P. JEHN, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Orders of the Unemployment Compensation Board of Review, in the cases of In Re: Claim of Robert P. Jehn, No. B-239277; Claim of David G. Stallsmith, No. B-239278; Claim of Charles F. Westlake, No. B-239279; Claim of Edwin Heffacker, No. B-239280; Claim of K. Wells, No. B-239281; Claim of Ronald S. Roxberry, No. B-239282; Claim of Gary R. Hoovler, No. B-239283; Claim of Michael L. Sturgin, No. B-239284; Claim of Michael L. Zimmer, No. B-239285; Claim of Dennis Martin, No. B-239286; Claim of Richard Dunlap, No. B-239287; Claim of David Graham, No. B-239288; Claim of Gary E. Doyle, No. B-239289; Claim of Ralph J. Kern, No. B-239290; Claim of Jeanne L. Martin, No. B-239291; Claim of Robert G. Kuhn, No. B-239292; Claim of Robert C. Kocher, No. B-239293; Claim of Evelyn M. Dye, No. B-239294.
William J. Madden, Cusick, Madden, Joyce & McKay, for petitioner.
Richard Faux, Associate Counsel, with him, James K. Bradley, Associate Counsel, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 110 Pa. Commw. Page 210]
Robert Jehn and seventeen other individuals (claimants) petition for review of an order of the Unemployment Compensation Board of Review (Board) which affirmed in part and reversed in part a referee's decision, thereby denying them benefits.
The claimants are or were employees of Sprang and Company (employer), and are or were represented by the International Brotherhood of Electrical Workers, Local 2179 (union). The labor-management agreement (contract) between the employer and the union expired at midnight on August 15, 1983 after eight negotiation sessions failed to result in a new contract. Accordingly, pickets appeared at the employer's entrances on Sunday, August 14, 1983, and no union members reported to work on Monday, August 15, 1983. Contract negotiations
[ 110 Pa. Commw. Page 211]
resumed on August 24, 1983. With regard to the events subsequent to August 24, 1983, the referee, whose findings were adopted by the Board, pertinently found that:
9. On September 1, 1983, the union president reported by telephone to the employer that there was a favorable vote to return to work under the old contract if the employer would permit the union members to return to work.
10. On September 6, 1983, the company offered a proposal to the union but the offer was refused by the union due to the following language: 'The level of wages and benefits as well as the other terms and conditions of employment for employee-members hired prior to August 13, 1983, shall be those which were in effect on August 13, 1983. There will be no holiday pay for Labor Day, September 5, 1983. The level of wages and benefits as well as the other terms and conditions of employment for persons hired after August 13, 1983 shall be as determined by the Company.'
11. On that same date, the union made a counter proposal which read as follows: 'It is agreed between the parties to end the work stoppage and to return to work under the terms and conditions of the labor agreement which expired on August 13, 1983. All employees who were on the payroll as of August 13, 1983 shall return to work on the date this agreement becomes effective. This agreement shall continue in effect for a period of one year from the date of its execution, unless otherwise mutually agreed to and the parties agree to bargain in good faith.'
12. The employer insisted that the company agreement be approved or there would be no
[ 110 Pa. Commw. Page 212]
return to work. The employer again notified the union that work was available under the old contract, but subject to the employer's new proposal.
13. On September 7, 1983, there were some incidents of violence on the picket line involving the blockade of the entrances to the plant and a car being kicked and further damaged by tossed stones. In addition, roofing nails were spread on the employer's parking lot.
14. On September 9, 1983, an injunction to limit picketing at the site was issued by the Courts.
15. On September 14, 1983, a tentative agreement was reached, and it was agreed between the parties that all would be recalled to work by September 19, 1983 with the exception of those that were placed in layoff status due to lack of work.
The Board therafter concluded that the union was on strike from August 15, 1983 until September 14, 1983 when a tentative agreement was reached, and denied benefits for that period pursuant to Section 402(d) of the Unemployment Compensation Law (Law), 43 P.S. § 802(d).*fn1
The claimants had the burden of proving that the work stoppage resulted from a lock-out, rather than a strike. McCormick Dray Lines, Inc. v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 181, 459 A.2d 74 (1983). And, of course, whether a work stoppage results from a strike or a lock-out is a mixed question of law and fact subject to our review.
[ 110 Pa. Commw. Page 213]
and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a 'lock-out' and the disqualification for unemployment compensation benefits in the case of a 'stoppage of work because of a labor dispute' does not apply.
Id. at 444-45, 163 A.2d at 93-94.
The claimants argue that the union made an unconditional offer on September 1, 1983 to return to work, to which the employer did not respond until its September 6, 1983 rejection of that offer. The employer counters by arguing that the union merely offered on September 1, 1983 to continue negotiations. Inasmuch as the claimants are clearly ineligible for benefits for the week ending September 3, 1983, however, we will limit our analysis to the events of September 6, 1983, which events we believe are dispositive of this case.
With regard to the events of September 6, 1983, the referee and the Board pertinently found, in finding of fact No. 10, that the employer offered a proposal to the union to return to work, which the union refused. The claimants contend that this finding is not supported by substantial evidence because it was the union, rather than the employer, that made the offer. Our review of the record, however, indicates that the employer and the union both made offers on that date, and that both offers were rejected. The employer offered to allow the employees hired prior to August 13, 1983 to return to work under the old contract, but stated that employees hired after that date would be governed under whatever terms the employer chose to establish. The union, on the other hand, made essentially the same offer*fn4 as did
[ 110 Pa. Commw. Page 215]
the employer; i.e. to work under the terms and conditions of the old contract, but conditioned upon the additional provision that the "agreement shall continue in effect for a period of one year from the date of its execution. . . ."
We note that, if the union's statement was an offer to continue working under the status quo of the contract for a reasonable period of time pending final settlement of the contract negotiations, then the employer's refusal of that offer would constitute a lock-out under Vrotney. See Batkowski v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 51, 491 A.2d 953 (1985). If, however, the union's "offer" was, in actuality, an offer for a new one-year contract on the same terms and conditions as the expiring contract, then it was insufficient to convert the strike to a lock-out under Vrotney. Bishop v. Unemployment Compensation Board of Review, 90 Pa. Commonwealth Ct. 553, 496 A.2d 110 (1985). And, if the strike continued, of course, the claimants would be ineligible for benefits.
With regard to this issue, the Board pertinently found that:
In the instant case an examination of the record leads to the conclusion that the Union's offer to return to work under a written contract for a period of one year was, in fact, an attempt to obtain a final end to the negotiations through a contract for a period of one year. The Union's offer was not an attempt to return to work for a reasonable period of time pending negotiation of a new agreement. It is clear from the record that the employer had already agreed to indefinitely extend the contract while negotiations continued. The employer only refused to sign a contractual commitment which would have constituted a settlement of the negotiations. Thus, the offer by the Union was not an offer to continue
[ 110 Pa. Commw. Page 216]
the status quo for a reasonable period of time while the negotiations proceeded.*fn5
And, inasmuch as the Board's findings (i.e. that the union's offer was not for a reasonable period of time and that the union's offer was in effect for a new contract) are supported by substantial record evidence,*fn6 we can find no error in the Board's conclusion that the offer by the union was insufficient to convert the strike to a lock-out.
[ 110 Pa. Commw. Page 217]
Accordingly, we will affirm the order of the Board.
And Now, this 9th day of October, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.